1839.-Wilson v. Metcalfe. On the 8th of December, 1837, a copy of the sequestration was served on Mrs. Brown and from the evidence it appeared that a demand of arrears of the annuity was made upon her. She admitted that 2251. was due, and that that sum had been placed by her and then was in the branch *bank at New Malton, [*264] ready to be paid to the party entitled. On the 22d of December, 1827, the sequestrators demanded payment of the 2257, of the branch bank, but which demand was not complied with. On the 17th of June, 1838, a further sum of 50l. accrued due in respect of the annuity, making in the whole 2751. In July, 1838, the solicitor of John Ness demanded of Mrs. Brown the immediate payment to him on behalf of John Ness, of the arrears of the annuity, whereupon her solicitor offered to the solicitor of the plaintiff's, who acted also as the solicitor of the sequestrators, to pay him the arrears of the annuity and the future payments, on the condition that he would indemnify and save harmless Mrs. Brown against all consequences arising from such payments. No such indemnity having been given, John Ness, on the 23d of August, 1838, threatened, that unless the arrears were paid to him before the 3d of September, next, he would distrain. Mrs. Brown's solicitor again repeated the offer of payment to the sequestrators, on receiving a sufficient indemnity, but the solicitor of the plaintiffs and of the sequestrators "declined to make himself liable and said, there were no parties plaintiffs in this suit who could give any satisfactory indemnity." Nothing having been done for the security of Mrs. Brown, she on the 4th of September, 1838, paid over the amount of the arrears to the solicitor of John Ness. The commissioners again demanded payment of the 2751. on the 5th of March, 1839, which not having been paid, notice of this motion, for payment of the 2751. and all future payments, was given on the 3d of May, 1839. *Mr. Pemberton and Mr. E. R. Daniell, in support of the motion, [*265] contended that the case of Johnson v. Chippendall,(a) which would be relied on for the respondent, was not applicable; for there the sequestration was on mesne process for want of answer, while in the present case the sequestration was founded on a decretal order for payment of money; again, the property in this case was a rent charge with power of distress, which was not a chose in action: here there was a clear admission of the amount due and of a liability to pay. That Mrs. Brown was bound, after notice, to pay the annuity to the sequestrators, and that the court would have protected her after such payment, and restrained John Ness from taking any proceedings against her for the recovery. 1839.-Wilson v. Metcalfe. They cited Simmonds v. Kinnaird,(a) Francklyn v. Colhoun,(b) Opie v. Maxwell, (c) Pelham v. Duchess of Newcastle.(d) Mr. Tinney and Mr. Wilbraham, contra, for Mrs. Brown, made no objection to any order for payment of the annuity for the future, which the court, in the presence of John Ness, might make, and which would be a sufficient indemnity to Mrs. Brown. As to that part of the motion which sought to make the respondent pay the arrears a second time, they observed, that the motion was made by the plaintiffs, and not by the sequestrators; that there was not even a suggestion that any indemnity or protection had ever been offered to Mrs. [*266] Brown; she was a stranger to the cause, and ought not to be left unprotected against the legal power of distraining which John Ness possessed and threatened. That the money having been deposited, and ready to be paid to the party entitled, the plaintiffs ought to have filed a bill or applied to the court for such an order as would have protected the respondent, and not having done so, and having been guilty of great laches, the respondent ought not to be made liable to pay over again a sum which she had once been compelled to pay by threats of legal process. That the arrears of a rent charge were stated by Lord Coke to be choses in action, and that a chose in action was not liable to sequestration; Johnson v. Chippendall(e) a case elaborately considered by the Vice-Chancellor. That the writ of sequestration did not in its terms(g) authorize the commissioners to seize a chose in action; and that the authority to sequester differed materially from the appointment of a receiver, for the latter directed payment and attornment, and, therefore, of itself afforded a sufficient indemnity to a party making payments to the receiver. Mr. Pemberton in reply. THE MASTER OF THE ROLLS-I will read over the affidavits before I finally decide the case. John Ness having been served with notice of this motion, I am clearly of opinion, that as to the future payments, the order ought to be made. Mrs. Brown, it appears, on an application being made to her, unreservedly gave the information which she ought to have [*267] given, that she was liable to pay the annuity, and *that 2257. was then due for arrears, and had been placed in the branch bank, so that at this time there was no controversy as to the amount due; and if this had been then brought on before me by motion to pay the money into court, I should have had no hesitation in ordering payment; this being a chose in action, there being no dispute as to these sums being due from Mrs. Brown to John Ness, and there being no question of liability or of account, but, on the contrary, there being a clear admission of these sums being in her hands belonging to the person whose estate had been ordered to be sequestered. I am of opinion, moreover, that if this sum of 2257. had been paid under such (a) 4 Ves. 735. (b) 3 Swan. 276 (c) Cited in argument in 4 Ves. 742, 744 1839.-Wilson v. Metcalfe. an order, there would have been ample protection and indemnity to her, and that John Ness would not afterwards have been permitted to take proceedings against her in respect of such sums. Notice of the sequestration was given to the branch bank shortly after, but unfortunately nothing further was done from December, 1837, to July, 1838. During this time every thing required for the security of all parties might have been done; but in July, 1838, John Ness, who had a right of distress, made a demand and threatened proceedings. Whatever may be the jurisdiction of the court in cases of this nature, it cannot be doubted, that persons claiming under a sequestration are bound to do all that is requisite for the protection of the parties made liable to pay. A demand was made by Ness, who had a legal title and might destrain, and Mrs. Brown's solicitor then asked for an indemnity; I do not think this was proper if he meant a bond or mortgage, but if he meant that an application should be made to the court for such an order as would protect his client, it was very reasonable. The parties, however, seem to have entered into a controversy as to the jurisdiction of the court, each producing authorities in support of their opposite views; and in August, 1838, *John Ness applied again, and gave [*268] notice that if payment was not made by the 3d of September, he would distrain for the recovery of the arrears. This was communicated to the solicitor of the plaintiffs, and nothing was done, and the money was unfortunately paid over. The question to be decided is, whether it was not the duty of the plaintiff to obtain such an order from the court, as would save Mrs. Brown from any proceedings which might be adopted by Ness, and if the plaintiffs are entitled to make her pay over again; I must carefully consider the affidavits before I come to such a conclusion. It is quite a different thing to obtain an order for payment before she had paid it over, which would have protected her, and now coming for an order to compel her to pay it to the sequestrators after she has once paid it to Ness; but if Mrs. Brown has paid it over under an indemnity, I should then order her to repay the amount: an affidavit must therefore be produced to show that she has received no indemnity. An affidavit denying that any indemnity had been given was subsequently produced. June 18. THE MASTER OF THE ROLLS (after stating the sequestration and the demand) proceeded: Mrs. Brown admitted that 2251. was due, and that that sum had been placed by her and then was in the branch bank ready to be paid to the party entitled. In this state of things, and in the absence of any question as to her liability to pay the 2251., or as to the right of John Ness to receive it, if an application had been made for the payment of the 2251. to the sequestrators, or into court, I think that an order to that effect ought to have been made. *But there was no such application, and in July, 1838, the arrears [*269] 1839.-Wilson v. Metcalfe. had accumulated to 2751., and a demand for payment was made by John Ness; this demand was communicated to the solicitor of the plaintiff, who appears to have acted for the sequestrators; and the solicitor for Mrs. Brown offered to pay the sum due on being indemnified. I think that the plaintiff or the sequestrators were bound to proceed in such a manner as would protect Mrs. Brown from the demands of Ness, and that she would have been protected if an order had been obtained directing her to pay as she was willing to do; but unfortunately, instead of pursuing this simple course, the parties entered into a correspondence about the law of this court respecting sequestrations, and after some further delay, Ness gave notice that he would distrain if he was not paid by the 4th of September; and notice of this threat having been communicated to the plaintiff, and nothing being done upon it, the sum of 2761. was paid to the solicitors of Ness. It is now moved that Mrs. Brown may pay this sum over again to the commissioners of sequestration; but I think that I ought to make no such order. I have read the case cited in the arguments and many others: and it appears to me that in such a case as this, a chose in action is subject to the process of sequestration, but how the sequestration is to be made effective in respect of choses in action may be a question requiring much consideration ; in a clear and simple case it may be by order only, or a voluntary payment may be protected; in other cases it may be necessary to resort to an action or suit under the directions of the court. But I consider it to be clear, that if [*270] the party owing the debt requires protection, he ought to have it, *and that even if he is willing to make payment, the court would not order it, unless it appeared that protection would be afforded. In this case, Mrs. Brown was willing to pay, but desired protection: she might I think have had protection by an order upon motion of which John Ness had notice; but being left unprotected from December, 1835, to September, 1838, I think that she was not bound to await the distress which John Ness threatened, and is not liable to pay the money over again. The ground of my decision is, that the plaintiff or the sequestrators, having ample time and opportunity, did not, as they might have done, apply for an order of payment, and it was evident that Ness would distrain, if payment were not made to him. I think that Mrs. Brown ought to pay the sums hereafter to become due to the sequestrators after deducting the costs of this motion.[1] [1] Vide Egan v. Heenim, 1 Flan. & Kel. 39. Hodgens v. Wheeler, Sausse & Sc. 443. On application for payment out of court of money belonging to a feme covert, it must either be shown that there has been no settlement or agreement for a settlement; or if any settlement exist, it must be produced, to enable the court to judge whether it effects the fund in question: it is not sufficient to show by affidavit that the particular fund is not the subject of any settle ment. ON a petition for the payment out of court of money belonging to a married woman, the evidence of its being unaffected by any settlement was the affidavit of "the petitioner Josiah Clark and wife, which [271] stated "that no settlement or agreement for a settlement, had at any time been made or executed by these deponents or either of them, affecting or concerning the rights, shares, or interests of these deponents or either of them, in the shares or interest of these deponents, or any part or portion thereof." Mr. Steere, in support of the petition. THE MASTER OF THE ROLLS held this affidavit insufficient, observing, that if any settlement existed, the petitioners were not competent judges of its effect. That many instances had recently occurred where parties had made similar affidavits, representing that a settlement did not affect the property in question, yet on inspection of the settlement it turned out to be quite the reverse. It was therefore necessary either to produce the settlement or to show that none existed. (1) 1839 January 30. PICKWICK V. GIBBES. A testator directed his trustees, as soon as convenient after the decease of his wife, to raise 10,0001. for his nephew, an infant, and to invest and apply the income towards his maintenance. The testator had previously given his wife an annuity of 1000l. a year, payable quarterly. The wife pre-deceased the testator: Held, that the infant was entitled to interest on his legacy from the testator's decease. THE testator in this case, by his will, amongst other things, gave his wife an annuity of 1000l. a year, by quarterly payments, to be made at the end. of one calendar month from the day of his decease. By a codcil to his will, dated the 21st of June, 1835, the testator directed his trustees or trustee for (1) The above case is somewhat obscure. But the decision evidently rests upon the principle of the protection which courts of equity extend to married women: the judge in equity is, ex officio, bound to protect her rights, without any suggestion of counsel on her behalf, where the husband seeks to become possessed of her separate property through the intervention of the court. Frank v. Frank, 2 Mylne & Cr. 171, 179. Howard v. Moffat, 2 Johns. Ch. Rep. 206. Glen v. Fisher, 6 Johns. Ch. Rep. 33. In the matter of Stuart, 1 Edw. Ch. Rep. 168. 1 Keen, 73, n. 2: |